FEDERAL COURT OF AUSTRALIA
Deeming v Pesutto (No 3) [2024] FCA 1430
File number(s): VID 1023 of 2023 Judgment of: O’CALLAGHAN J Date of judgment: 12 December 2024 Catchwords: DEFAMATION – proceeding against the Leader of the Opposition in the Victorian Parliament brought by a Member expelled from the Parliamentary Liberal Party – imputations pleaded in respect of five impugned publications – consideration of whether imputations conveyed –– consideration of whether publication of defamatory matter about the applicant has caused, or is likely to cause, serious harm to her reputation within the meaning of s 10A(1) of the Defamation Act 2005 (Vic) (the Act) – serious harm found – defences of public interest under s 29A of the Act, honest opinion under s 31 of the Act, Lange qualified privilege and contextual truth under s 26 of the Act pleaded – where defences not made out – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages – assessment of damages – quantification of damages Legislation: Defamation Act 2005 (Vic) ss 10A, 10A(1), 20, 20(1), 20(2), 26, 29A, 29A(1)(b), 29A(3)(a), 29A(3)(g), 31, 31(4), 31(4)(a), 31(5)(b)(i), 34, 35(2), 35(2A), 35(2B), 36
Evidence Act 1995 (Cth) ss 56, 81
Judiciary Act 1903 (Cth) s 79
Defamation Act 2013 (UK) s 1
Cases cited: Agustin-Bunch v Smith (No 3) [2023] VSC 277
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Corp v Chau Chak Wing (2019) 271 FCR 632
Australian Broadcasting Corp v McBride (2001) 53 NSWLR 430
Banks v Cadwalladr [2019] EWHC 3451 (QB)
Banks v Cadwalladr [2023] KB 524
Barilaro v Google LLC [2022] FCA 650
Barron v Vines [2016] EWHC 1226 (QB)
Bazzi v Dutton (2022) 289 FCR 1
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36
Deeming v Pesutto [2024] FCA 951
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Dutton v Bazzi [2021] FCA 1474
Economou v de Freitas [2016] EWHC 1853 (QB); [2017] EMLR 4
Feldman v Polaris Media Pty Ltd (2020) 102 NSWLR 733
Greenwich v Latham [2024] FCA 1050
Hanson v Burston [2023] FCAFC 124; (2024) 413 ALR 299
Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336
Hockeyv Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Jones v Dunkel (1959) 101 CLR 298
KSMC Holdings Pty Ltd v Bowden (2020) 101 NSWLR 729
Lachaux v Independent Print Ltd [2020] AC 612
Lange v Australian Broadcasting Corp (1997) 189 CLR 520
Lee v Wilson (1934) 51 CLR 276
Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369
Lewis v Daily Telegraph Ltd [1963] 1 QB 340
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Details
- AGLC
- Deeming v Pesutto (No 3) [2024] FCA 1430
- Case
- [2024] FCA 1430
- Decision Date
CaseChat Overview and Summary
The case of Deeming v Pesutto (No 3) involved a defamation action brought by Mrs Deeming, a former Member of the Victorian Parliament, against Mr Pesutto, the Leader of the Opposition. The dispute arose from five publications made by Mr Pesutto regarding Mrs Deeming's views and actions. The primary issues for the court to decide were whether these publications were defamatory, whether they caused serious harm to Mrs Deeming's reputation, and if certain defences could be successfully invoked. The defences included public interest, honest opinion, Lange qualified privilege, and contextual truth. The court needed to assess if the defamatory imputations were true and if they were published in the public interest or constituted an honest opinion or qualified privilege.
In its reasoning, the court found that the publications in question were indeed defamatory. They conveyed significant negative meanings about Mrs Deeming's character and integrity. The court further determined that the publications caused serious harm to Mrs Deeming's reputation, as they significantly lowered her standing in the eyes of her community, her professional circles, and her faith communities. The court rejected all defences raised by Mr Pesutto, finding that none were substantiated by the evidence. Consequently, Mrs Deeming was awarded damages for the harm caused to her reputation, which included both general damages for non-economic loss and aggravated damages. The quantification of these damages was to be determined at a later date.
The court concluded that the proceeding be adjourned to a later date for the making of final orders, including the formal entry of those orders in accordance with Rule 39.32 of the Federal Court Rules 2011.
In its reasoning, the court found that the publications in question were indeed defamatory. They conveyed significant negative meanings about Mrs Deeming's character and integrity. The court further determined that the publications caused serious harm to Mrs Deeming's reputation, as they significantly lowered her standing in the eyes of her community, her professional circles, and her faith communities. The court rejected all defences raised by Mr Pesutto, finding that none were substantiated by the evidence. Consequently, Mrs Deeming was awarded damages for the harm caused to her reputation, which included both general damages for non-economic loss and aggravated damages. The quantification of these damages was to be determined at a later date.
The court concluded that the proceeding be adjourned to a later date for the making of final orders, including the formal entry of those orders in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The proceeding be adjourned to a date to be fixed for the making of final orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Each of them was cross-examined. THE FACTS Because of the large volume of material that was adduced into evidence, I asked the parties during closing submissions to agree upon a document that set out an Agreed Factual Narrative. This was emailed to chambers after the completion of the trial, but has not yet been electronically filed, and I have used it to assist me, partly, to chart a course through the mountain of evidence.Mrs Deeming Mrs Deeming was born in 1983 in Timboon, Victoria. She attended a Catholic High School in Beaconsfield, and obtained her Victorian Certificate of Education in 2001. She was awarded a scholarship to study at La Trobe University, and studied there from 2002 to 2005, obtaining a Bachelor of International Relations in 2005. She met her husband in 2003, and they married in October 2005. That same year, or thereabouts, they joined the Liberal Party. In 2006, Mrs Deeming obtained a Post-Graduate Diploma of Education from the University of Melbourne, and from 2006 onwards, she worked at various private and secondary schools, teaching English, Literature, Legal Studies, Philosophy, Science and Psychology. She has four children. In February 2008, upon the birth of their first child, Mr and Mrs Deeming let their membership of the Liberal Party lapse, for want of time. Inspired by a talk which they attended by Mr John Anderson AC, they rejoined the Liberal Party in early 2014. That same year, Mrs Deeming was asked to run for the Liberal Party in the upcoming Victorian state election. She was preselected for the seat of St Albans and ran, unsuccessfully. She achieved 32.5% of the two party preferred vote. In 2018, Mrs Deeming was encouraged by a number of Liberal Party members to run for the number two “spot” for the Western Metropolitan Region in that year’s election. She was not successful, but instead accepted the unwinnable third spot. She campaigned for the Liberal Party in all 11 seats in that region. In 2020, Mrs Deeming won election as a councillor in the City of Melton, where she served until 2022. She gave evidence that she used her position to seek to foster Liberal Party values in the political sphere, as a known Liberal Party member, and “networked with many people and organisations across the political spectrum, including to attempt to build a working political consensus around the protection and reinstatement of sex-based rights”. In March 2022, Mrs Deeming unsuccessfully sought endorsement as the Liberal Party candidate for the Federal Electoral Division of Gorton. She was pre-selected, but not endorsed, because, according to evidence given by Ms Crozier, the then Prime Minister, Mr Scott Morrison, thought her views on some social issues were considered too extreme and politically risky. On 23 July 2022, Mrs Deeming was selected by delegates at a Preselection Convention as the Liberal candidate for the Western Metropolitan Region for the November 2022 Victorian state election. Later that month, the Liberal Party of Australia’s Administrative Committee (Victorian Division) met, including to determine whether to endorse the delegates’ selection of Mrs Deeming.
Evidence
Evidence Before The Court
It follows that the need for vindication in this case is high and any award of damages must be “sufficient to convince a bystander of the baselessness of the charge[s]”: Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 (Lord Hailsham LC), cited by Lee J in Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 at [1014].Evidence of Mrs Deeming’s reputation Mrs Deeming adduced a wealth of evidence, which I accept, to establish that prior to 19 March 2023, she enjoyed a good reputation. There is considerable evidence of her good reputation in the objective facts, namely that Mrs Deeming:(1)was elected to the position of Councillor for the City of Melton in 2020, where she served from 2020 until 2022;(2)won preselection for the number one spot on the Liberal Party ticket for the Western Metropolitan Region in 2022;(3)was elected as the Liberal Party Member of the Victorian Parliament for the Western Metropolitan Region on 26 November 2022, with the second highest “below the line” preference vote of all newly elected MPs behind only Ms Heath; and(4)was asked by Mr Pesutto, as Leader of the Liberal Party, to run for Liberal Party Whip in the Legislative Council and was unanimously voted to that position in December 2022. She also enjoyed a good reputation among her family and friends. Her husband gave unchallenged evidence that in general, those he knew who also knew or knew of Mrs Deeming – including their family, friends, and work colleagues – regarded her as a friendly, warm and positive person. She was regarded as someone who truly cared about others and respected as holding strong principles. Over the years to 19 March 2023, he “was amazed at how many people ended up as fierce supporters of her because she was friendly and respectful” (CB:4, 119[38]). Ms Hughes, who has known Mrs Deeming since their days at university and now works for her as an administrative assistant, gave unchallenged evidence that, within her social circles prior to 19 March 2023, Mrs Deeming “was well respected and had a reputation for being honest, driven, devoted to her Christian faith and dedicated to helping others”. Mrs Hughes’ family “admired her honesty and regarded her as a truthful person” (CB:14, 206[7]–[8]). Ms Gorman, who works for Mrs Deeming as an electoral officer, and has known Mrs Deeming since early 2019, gave unchallenged evidence that, within the circles in which she mixed, Mrs Deeming had a reputation for being “knowledgeable, kind and generous” and “as someone who was very giving of her time; wanted to help others; and stood by her principles” (CB:8, 159[6]). She also enjoyed a good reputation among faith communities. Mr Deeming gave unchallenged evidence that, prior to 19 March 2023, Mrs Deeming’s reputation amongst the church communities of Brimbank Presbyterian Church and Melton Presbyterian Church was as someone who was friendly and warm, fun and inclusive and willing to serve; that her work as the Researcher for the Church and Nation Committee of the Presbyterian Church (CNCPC) was highly regarded; and that he would often hear from Ministers that they loved her work and found it helpful in understanding the issues they were facing in the world of politics and that they would tell him they would often share her work with their congregations (CB:4, 119[39]).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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